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Hamline University - School of Law; Australian Health Law Research Center, QUT

2013

Abstract:

This is a research proposal for a project to be completed during a part-time Non-Residential Lab Fellowship from the Edmond J. Safra Center for Ethics. The term of the project would be between September 2013 and June 2014.

Complex ethical situations, such as end-of-life medical treatment disputes, occur on a regular basis in healthcare settings. Healthcare ethics committees (HECs) have been the dispute resolution forum for many of these conflicts. HECs are typically multidisciplinary groups comprised of representatives from different departments of the healthcare facility: medicine, nursing, law, pastoral care, and social work, for example. HECs were established to support and advise patients, families, and caregivers as they work together to find solutions for delicate circumstances.

HECs generally have been considered to play a mere advisory, facilitative role. But, in fact, HECs often serve a decision making role. Both in law and practice HECs increasingly have been given significant authority and responsibility to make treatment decisions. Sometimes, HECs make decisions on behalf of incapacitated patients with no friends or family. Other times, HECs adjudicate disputes between providers and the patient or patient’s family.

Unfortunately, HECs are not up to the task. They lack the necessary independence, diversity, composition, training, and resources. HECs are overwhelmingly intramural bodies. That is, they are comprised of professionals employed directly or indirectly by the very same institution whose decision the HEC adjudicates. Consequently, many HECs make decisions that suffer from risks of corruption, bias, carelessness, and arbitrariness.

To address the problems of intramural HECs, I propose that their adjudicatory authority be relocated to a multi-institutional HEC. Thereby, no single institution’s HEC would have a controlling voice in the adjudication of its own dispute. A multi-institutional HEC preserves the expertise and extrajudicial nature of HECs. But in contrast to an intramural HEC, a multi-institutional HEC possesses better resources, a greater diversity of perspectives, and the neutrality and independence required by due process.